United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2000 Decided June 16, 2000
No. 99-5298
Barrick Goldstrike Mines Inc.,
Appellant
v.
Carol M. Browner, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(99cv00958)
Richard E. Schwartz argued the cause for appellant. With
him on the briefs was Thomas C. Means.
Todd S. Kim, Attorney, U.S. Department of Justice, argued
the cause for the federal appellees. With him on the brief
were Lois J. Schiffer, Assistant Attorney General, Mary F.
Edgar and Andrew C. Mergen, Attorneys.
Before: Edwards, Chief Judge; Randolph and Garland,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: This is an appeal from the
judgment of the district court dismissing the complaint of
Barrick Goldstrike Mines Inc. The case arises under s 313
of the Emergency Planning and Community Right-to-Know
Act ("EPCRA"), 42 U.S.C. s 11023. EPCRA requires cer-
tain types of facilities that "manufactured," "processed" or
"otherwise used" listed "toxic chemicals" in amounts exceed-
ing specified thresholds to report "releases" of these chemi-
cals by July 1 of each year to the Environmental Protection
Agency. Id. s 11023(b)(1). EPA uses the information to
administer a "toxic release inventory" program pursuant to
EPCRA. The program makes the toxic release information
public. Although the toxic release inventory program original-
ly applied only to manufacturing facilities, EPA extended it
by regulation to several other industry groups, including
metal mining. See 62 Fed. Reg. 23,834 (1997). Barrick
mines gold and other precious metals in Nevada. The compa-
ny alleges that in applying the program to mining, EPA in
fact revised the program; that its revisions were substantive;
that they were not made through rulemaking, as they should
have been; and that the revisions were made instead through
statements in "rulemaking preambles" and in detailed di-
rectives issued in the form of "guidance" and a letter. Brief
of Appellant Barrick at 4. On EPA's motion the district
court dismissed the complaint for lack of jurisdiction and
because it was not ripe. The court issued no written opinion.
EPCRA contains no judicial review provision. Barrick
therefore invoked the district court's general federal question
jurisdiction (28 U.S.C. s 1331) and sought, pursuant to the
Administrative Procedure Act (5 U.S.C. ss 701-706, and 28
U.S.C. s 2201), a declaratory judgment that the three EPA
actions were contrary to law. As to jurisdiction, the question
is whether Barrick has challenged "final agency action" with-
in the meaning of the APA, see 5 U.S.C. s 704. As to
ripeness, we must determine whether Barrick, like the drug
manufacturers in Abbott Laboratories v. Gardner, 387 U.S.
136 (1967), but unlike the cosmetics companies in Toilet
Goods Ass'n v. Gardner, 387 U.S.158, 164 (1967), must change
its conduct or risk costly sanctions, and whether the issues
presented in Barrick's complaint are suitable for review at
this time. See Clean Air Implementation Project v. EPA,
150 F.3d 1200, 1204-05 (D.C. Cir. 1998).
1. Barrick claimed that for certain mining operations,
including its own, EPA had revised the so-called de minimis
exception set forth in 40 C.F.R. s 372.38(a) without conduct-
ing a rulemaking. Barrick moves waste rock. The rock
contains trace concentrations of listed substances--toxic
chemicals--including copper, nickel, silver and other metal-
bearing minerals. Under EPA's de minimis regulation, if a
toxic chemical in a mixture amounts to less than 1% (or in the
case of a carcinogen, less than 0.1%) the substance is not
counted as having been released and does not count toward
the manufacturing, processing or "otherwise used" threshold.
Id. In EPA's "Metal Mining Facilities" guidance, posted on
EPA's website in January 1999,1 the agency stated that the
chemicals in waste rock are not eligible for this de minimis
exception because waste rock is not "manufactured, processed
or otherwise used." Office of Pollution Prevention and Tox-
ics, EPA, EPCRA Section 313 Industry Guidance: Metal
Mining Facilities 3-28 (Jan. 1999) [hereafter "1999 Guid-
ance"].
Counsel for EPA admitted at oral argument that EPA's
position on the application of the de minimis exception to
waste rock is final. If Barrick does not conform to EPA's
view in fulfilling its reporting obligation it will be subject to
an enforcement action and fines. Even without counsel's
concession, the finality of EPA's position is clear enough.
__________
1 The guidance went through several iterations from 1997 to
1999, some of which were published in the Federal Register. See,
e.g., 62 Fed. Reg. 63,548 (1997). According to Barrick, the January
1999 version is "comprehensive and authoritative" and represents
the agency's principal set of reporting instructions for mining
companies. Brief of Appellant Barrick at 5.
That the issuance of a guideline or guidance may constitute
final agency action has been settled in this circuit for many
years. See, e.g., Better Gov't Ass'n v. Department of State,
780 F.2d 86, 92-96 (D.C. Cir. 1986); Ciba-Geigy Corp. v.
EPA, 801 F.2d 430, 435 & n.7, 436 (D.C. Cir. 1986). In Better
Government we rejected the proposition that if an agency
labels its action an "informal" guideline it may thereby escape
judicial review under the APA. 780 F.2d at 93. In Ciba-
Geigy we held that a letter from an agency official stating the
agency's position and threatening enforcement action unless
the company complied constituted final agency action. 801
F.2d at 436-39, 438 n.9. In Appalachian Power Co. v. EPA,
208 F.3d 1015, 1020-23 (D.C. Cir. 2000), we held again that a
guidance document reflecting a settled agency position and
having legal consequences for those subject to regulation may
constitute "final agency action" for the purpose of judicial
review. For finality to be found in these cases two conditions
had to be satisfied: "First, the action must mark the 'consum-
mation' of the agency's decisionmaking process, Chicago &
Southern Airlines, Inc. v. Waterman S.S. Corp., 333 U.S. 103,
113 (1948)--it must not be of a merely tentative or interlocu-
tory nature. And second, the action must be one by which
'rights or obligations have been determined,' or from which
'legal consequences will flow,' Port of Boston Marine Termi-
nal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71
(1970)." Bennett v. Spear, 520 U.S. 154, 177-78 (1997). Here
there is no doubt that EPA will refuse to apply the de
minimis exception to Barrick's waste rock and that its refus-
al to do so has legal consequences--namely, that Barrick is
bound to keep track of its movement of waste rock and report
the movements as releases of toxic substances.2
As against this EPA contended at oral argument that the
1999 Guidance changed nothing; that EPA had already taken
the position Barrick complains about in the preamble to the
__________
2 EPA's 1999 metals mining guidance commanded: "you must
report ... the waste rock." 1999 Guidance, at 3-28. Other
portions of the 1999 Guidance, not challenged in this case, are
framed as recommendations.
rule subjecting the mining industry to the toxic reporting
program; and that Barrick should have aimed its complaint
at the preamble, but had not done so. There are three reasons
for rejecting this line of reasoning.3 First, EPA never made
the argument in its brief in this court. See, e.g., Carducci v.
Regan, 714 F.2d 171, 177 (D.C. Cir. 1983). It did not even
cite the page or pages in the preamble that supposedly
support its position. Second, Barrick did indeed challenge
EPA positions expressed in the preambles (Complaint p 25;
Brief at 4) and did so in a timely fashion because no statute of
limitations applied. Third, we have recognized that final
agency action may result "from a series of agency pronounce-
ments rather than a single edict." Ciba-Geigy, 801 F.2d at
435 n.7. Hence, a preamble plus a guidance plus an enforce-
ment letter from EPA could crystallize an agency position
into final agency action within APA s 704's meaning. Fairly
read, this is what Barrick's complaint alleges.4
__________
3 EPA's brief contained a quite different argument--namely
that the 1999 Guidance was not final because it was not "binding"
and it was not binding because it merely explained "EPA's current
view of how the statutory and regulatory requirements of the [toxic
reporting] program apply to the metal mining industry and do not
impose any binding new requirements." Brief for Federal Apellees
at 16. It appears that EPA has abandoned this line of argument in
light of our intervening decision in Appalachian Power Co. v. EPA.
If it has not, if EPA still wishes us to consider the argument despite
the quite different position it took at oral argument, we reject it for
the reasons given in Appalachian Power, 208 F.3d at 1020-23.
There is not the slightest doubt that EPA directed regulated
entities to comply with the 1999 Guidance regarding their treatment
of waste rock, see supra note 1, and the other two interpretations
Barrick protests--conversion of one metal compound into another
within the same compound category, and impurities in dore, see
infra pp. 6-8.
4 In a case (unlike this one) in which our jurisdiction was
restricted to reviewing final "regulations," we held that a statement
in a preamble to a proposed rule could not be reviewed. See
Florida Power & Light Co. v. EPA, 145 F.3d 1414, 1418-20 (D.C.
Cir. 1998); see also Molycorp, Inc. v. EPA, 197 F.3d 543 (D.C. Cir.
1999).
We also agree with Barrick that this aspect of its case is
ripe for judicial review. The questions presented are purely
legal.5 Nothing we can imagine happening would bring the
issues into greater focus or assist in determining them. And
there is certainly the prospect of hardship to Barrick. Its
only alternative to obtaining judicial review now is to violate
EPA's directives, refuse to report releases involving waste
rock, and then defend an enforcement proceeding on the
grounds it raises here. In that respect the case is indistin-
guishable from Ciba-Geigy Corp. v. EPA, 801 F.2d at 438-39,
in which we held an analogous claim ripe for judicial review.
2. Barrick's second claim deals with whether it is "manu-
facturing" a "toxic chemical" when, in the course of extracting
gold from ore, trace amounts of naturally occurring metal
compounds change form, generally from metal sulfides to
metal oxides. In the 1999 metals mining guidance, EPA
announced that it would treat these changes as the manufac-
turing of toxic chemicals, a reportable event. See 1999 Guid-
ance, at 3-11. Barrick objects that the 1999 Guidance is
inconsistent with s 313(c) of the statute and 40 C.F.R.
s 372.65(c), which do not permit the agency to treat as
"manufacturing" the conversion of one metal compound into
another within the same compound category. No further
detail is needed to understand why there is final agency
action here and why this claim is ripe. Here too, EPA
counsel conceded at oral argument that the position on this
subject expressed in the 1999 Guidance is the agency's final
position. The 1999 Guidance itself (at 3-11) says just that:
Metal mining facilities should be aware of chemical con-
versions that may take place during beneficiation. The
following types of conversions constitute manufacturing:
__________
5 Barrick claimed not only that EPA had issued a substantive
rule without engaging in rulemaking but also that it had misinter-
preted its regulation (40 C.F.R. s 372.38(a)) and had acted arbi-
trarily by saying, with respect to the de minimis exception, that
waste rock is not manufactured, but saying elsewhere that all
"chemicals which exist in nature have been 'manufactured' at some
point," 62 Fed. Reg. at 23,857.
. Conversion of one metal compound to another
within the same compound category. For example, a
lead mine may convert galena (lead sulfide in ore) to
lead oxide during beneficiation.
Thus, if Barrick refuses to abide by the 1999 Guidance, the
company will be subject to an enforcement action.
3. Barrick's third and last claim relates to the fact that its
mine produces metal bars--dore--that are gold and silver but
also contain tiny amounts of naturally occurring elements and
compounds from rock, compounds and elements that EPA
lists as "toxic chemicals." Under the statute, "the term
process means the preparation of a toxic chemical, after its
manufacture, for distribution in commerce." 42 U.S.C.
s 11023(b)(1)(C)(ii). Barrick thus believes that a "toxic
chemical" cannot be "processed" unless it has first been
"manufactured." From this it concludes that in producing its
dore it has not processed toxic chemicals and therefore has no
reporting obligation under the statute. EPA's opposite con-
clusion, Barrick contends, is embodied in its statement in the
preamble to the 1997 rule expanding coverage to the mining
industry, in the 1999 Guidance and in a letter, dated March
18, 1999, from the Chief of EPA's Toxic Release Inventory
Branch to another mining company. The preamble states
that the term "manufacture" is not limited to human activity.
"Manufacture" of a toxic chemical includes its "production"
and "EPA interprets 'production' to include creation." 62
Fed. Reg. at 23,857. Thus, according to the preamble "chem-
icals which exist in nature have been 'manufactured' at some
point." Id. The 1999 Guidance states the same conclusion
without giving the reasoning:
Non-Target Metals and Metal Compounds. When pro-
cessing the target metals and metal compounds at your
facility, the ore you are beneficiating may also contain
other non-target EPCRA Section 313 metals and metal
compounds. If any portion of these non-target metals
and metal compounds remain in the metal concentrate
distributed into commerce, you must consider them to-
ward the processing threshold of 25,000 pounds. If the
EPCRA Section 313 chemicals are completely removed
from your product prior to distribution into commerce,
the chemicals are not considered processed and do not
have to be considered toward the processing threshold.
1999 Guidance, at 3-15. The March 18, 1999, "guidance"
letter from the branch chief also states the same conclusion.
In order to comply with EPA's interpretation, Barrick claims
that in 1999 it wound up reporting that it had " 'processed'
the naturally occurring metal impurities that it could not
completely remove from its dore." Reply Brief of Appellant
Barrick at 21.
Nothing in EPA's brief or in its oral argument indicates
that the EPA's position on this subject is tentative. The
March letter is firm and conclusive, as is the 1999 Guidance.
Both state what must be done to comply with EPA's toxic
release inventory program. Legal consequences flow from
the position expressed--Barrick must keep records and re-
port to EPA unless it wishes to risk an enforcement action.
That the agency action is embodied in interpretative state-
ments in a rulemaking preamble, in a guidance document, and
in a letter from a branch chief is not disqualifying. As we
have said, the final agency action in Ciba-Geigy, 801 F.2d at
436 n.8, consisted of a "series of steps taken by EPA"
culminating in a letter from an EPA official stating the
agency's position.6 We have no doubt that EPA, in respond-
ing by letter to industry inquiries, assists companies in bring-
ing themselves into compliance. But it scarcely follows that a
company may not obtain judicial review of the agency's
interpretation of the statute or regulation. There is of course
the matter of timing. We have already decided that the first
two objections Barrick raised are ripe for review and we see
no basis for ruling any differently on this claim. It too
presents a pure question of law and withholding review has
sufficient adverse effects on Barrick's business.
__________
6 The final agency action in Her Majesty the Queen v. EPA, 912
F.2d 1525, 1530-32 (D.C. Cir. 1990), consisted of a letter from an
EPA official reiterating the agency's interpretation of a provision in
the Clean Air Act.
For the reasons stated, the judgment of the district court is
reversed and the case is remanded for further proceedings.
So ordered.